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April 26, 2011

Third Circuit orders new capital sentencing heading for (in)famous Mumia Abu-Jamal

As detailed in this AP article, today a panel of the Third Circuit "ordered a new sentencing hearing for convicted police killer and death-row activist Mumia Abu-Jamal, finding for a second time that the death-penalty instructions given to the jury at his 1982 trial were potentially misleading." Here are more of the basics:

The 3rd U.S. Circuit Court of Appeals told prosecutors to conduct the new sentencing hearing within six months or agree to a life sentence. Abu-Jamal's first-degree murder conviction still stands in the fatal shooting of Officer Daniel Faulkner.

District Attorney Seth Williams said he would consider mounting another appeal to the U.S. Supreme Court. Defense lawyers for the former Black Panther, meanwhile, said the ruling addresses "an unfortunate chapter in Pennsylvania history."...

Tuesday's ruling is the latest in Abu-Jamal's long-running legal saga. A federal judge in 2001 first granted him a new sentencing hearing because of the trial judge's instructions on aggravating and mitigating factors. Philadelphia prosecutors have been fighting the order since, but the 3rd Circuit ruled against them in a pivotal 2008 decision.

In rejecting a similar claim in an Ohio death-penalty case last year, the Supreme Court ordered the Philadelphia appeals court to revisit its Abu-Jamal decision.  On Tuesday, the 3rd Circuit judges stood their ground and noted differences in the two cases.

The unanimous panel ruling in this lastest (and likely not last) chapter in the Mumia Abu-Jamal saga is available at this link.

UPDATE This morning's press story on the Third Circuit's ruling, which is headlined "D.A. to appeal court ruling for Abu-Jamal resentencing," provides this preview of what's next in this legal saga:

After speaking with the widow of slain police officer Daniel Faulkner, District Attorney Seth Williams said he would appeal a ruling by the U.S. Court of Appeals here yesterday awarding convicted cop-killer Mumia Abu-Jamal a new sentencing hearing.

Williams will ask the U.S. Supreme Court to overturn the appeals court's decision and reinstate Abu-Jamal's death sentence. The D.A. said Maureen Faulkner was "devastated" by the ruling.

Abu-Jamal, 57, was convicted in 1982 of first-degree murder in Faulkner's slaying and was sentenced to death.  Yesterday's ruling was the result of a U.S. Supreme Court decision last year that ordered the appeals court to review its 2008 ruling that ordered a new sentencing hearing for the former Black Panther.  Both yesterday and in 2008, the appeals court ruled that Abu-Jamal's murder conviction should stand but called for a new sentencing hearing because death-penalty jury instructions were misleading

April 26, 2011 at 05:19 PM | Permalink

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Comments

Whether they pursue a death sentence is irrelevant and the circuit court knows this. Even if he get's another death sentence he will certainly die of old age before the 20-30 year appeals process finally wraps up.

Posted by: MikeinCT | Apr 26, 2011 5:30:41 PM

Mike,

And has PA actually executed any non-volunteers in the modern death penalty age?

Posted by: Soronel Haetir | Apr 26, 2011 6:06:50 PM

I don't think PA has ever executed anyone involuntarily. The only case that ever left the 3rd intact was Rompilla and SCOTUS reversed them. They definitely have the most inefficient capital system among the states. One case last week had 4 issues in which the federal courts granted relief on. Where was the PA Supreme Court on this? Back to Mumia. The 3rd Circuit's opinion is no surprise. The judges made it very clear at the oral argument which way they were going. Let's see if SCOTUS wants to get involved.

Posted by: DaveP | Apr 26, 2011 7:11:28 PM

The 3d Circuit opinion is a joke. First of all, the Third Cricuit itself has made the same "mistake" as the Pa. Supreme Court. Second of all, the "unreasonably applied" conclusion is simply a critique of how the Pa. Supreme Court arrived at its decision, as if the Third Circuit were grading the state court's exam papers.

These "judges" are cruel hacks of the first order. The Third Circuit should have its jurisdiction to hear capital habeas cases permanently removed.

Posted by: federalist | Apr 26, 2011 8:11:28 PM

"On Tuesday, the 3rd Circuit judges stood their ground and noted differences in the two cases."

You gotta love circuit judges who "stand their ground" against the SCOTUS. Now let's see what happens when the SCOTUS "stands its ground" against them and orders them to re-instate the death sentence and file no further orders in the case without leave of the SCOTUS. (This happend a few years back in a MarilynPatel/Ninth Circuit case).

Stephen Reinhardt must be jealous of the panel's insolence.

Posted by: Bill Otis | Apr 26, 2011 8:34:26 PM

Bill, don't bet that the Supreme Court is going to reverse this nonsense. The Supreme Court will jump through hoops to help capital defendants, even going so far as to grant a stay for a murderer who blew off the rehearing deadline. Additionally, the Court often blows off lawless decisions by criminal coddling hack judges who seem to have a soft spot for capital murderers.

Posted by: federalist | Apr 26, 2011 8:41:08 PM

"(This happend a few years back in a MarilynPatel/Ninth Circuit case)."

Bill -- I should know this, but I don't: would you happen to have the cite, or even recall the petitioner's name, for that case?

Posted by: guest | Apr 26, 2011 9:08:46 PM

guest --

Robert Alton Harris, executed April 21, 1992. I was partly mistaken; the final lower court interference was by Ninth Circuit Judge John Noonan, not Judge Patel (although she had been in on it earlier).

Harris' execution was originally scheduled for 12:01 a.m. on the morning of April 21, but a series of four stays issued by individual judges delayed it until just after 6 a.m. In its order vacating the fourth stay of execution, the U.S. Supreme Court stated, "No further stays of Robert Alton Harris' execution shall be entered by the federal courts except upon order of this court."

Posted by: Bill Otis | Apr 26, 2011 11:02:18 PM

I find it curious that every judge that federallist and Bill disagree with is a "hack."

Posted by: anon11 | Apr 26, 2011 11:03:55 PM

federalist --

I hear you, believe me. But there is room for optimism this time. The one thing the SCOTUS more firmly insists upon than procedural punctilliousness for killers is everyone else's obedience to its power.

Posted by: Bill Otis | Apr 26, 2011 11:06:23 PM

anon11 --

No wonder you find it curious, since you're just making it up. At no point have I referred to ANY judge as a "hack," ever, much less every judge with whom I disagree.

You are welcome to quote a single post of mine to support your accusation.

Should I wait?

P.S. Although I do not speak for federalist, I'm quite sure that he has not said every judge he disagrees with is a hack.

Posted by: Bill Otis | Apr 26, 2011 11:13:28 PM

@Bill
Don't hold your breath, anon usual drops in for a silly comment but won't respond to any criticism.

Posted by: MikeinCT | Apr 27, 2011 1:25:24 AM

MikeinCT --

Some in the abolitionist faction of commenters -- quite a few of them, unfortunately -- recently waged a little campaign to get me and a few others banned for the crime of disagreeing with them. When this flopped, they reverted to the more usual routine, namely, to make it unpleasant for opposing commenters to speak up by engaging in vulgar insults and, as with anon11, fictional accusations. They know they're false when they launch them but don't care.

Liberalism has suffered an unhappy fate. Sixty years ago, these people were able to spot Joe McCarthy and run him out of town. Now they have become him.

Posted by: Bill Otis | Apr 27, 2011 4:05:03 AM

Federalist said:

1. "These 'judges' are cruel hacks of the first order. The Third Circuit should have its jurisdiction to hear capital habeas cases permanently removed."

2. “Additionally, the Court often blows off lawless decisions by criminal coddling hack judges who seem to have a soft spot for capital murderers. “

In resonse, Bill said:

“ federalist --
I hear you, believe me. But there is room for optimism this time. The one thing the SCOTUS more firmly insists upon than procedural punctilliousness for killers is everyone else's obedience to its power.”

The statement "I hear you, believe me" can reasonably be taken as an adoption of the views of federalist that the judges are hacks.


Posted by: anon11 | Apr 27, 2011 11:30:39 AM

anon11 --

1. I decide what I say; you do not re-decide it. When I want to adopt a commenter's exact lanugage, I quote him.

2. Not that it makes a difference. Your specific claim was (emphasis added) that "EVERY judge that federallist and Bill disagree with is a 'hack.'" For federalist to say that the three judges on this Third Circuit panel are hacks leaves about 99.99% of judges not being called hacks. But I see you don't let that bother you. You want to say "every" so you do. There's no more to it than that.

3. Finally, you're wrong even taken on your own made-up terms. My statement to federalist that I hear him most certainly CANNOT reasonably be taken as an adoption of the view that the panel judges are hacks. The only serious, natural reading of it is that it shows sympathy for federalist's dismay that the Supreme Court is probably going to reverse the decision -- that being by far federalist's main point, as you know.

4. And of course, to repeat the obvious, you do not even pretend to quote a post of mine in which I have ever called a judge a "hack."

Posted by: Bill Otis | Apr 27, 2011 12:50:06 PM

@ Bill:

Thanks for the case reference.

Posted by: guest | Apr 27, 2011 12:57:27 PM

guest --

Not a problem. If I recall correctly, Kent filed a brief in the case, although I didn't know Kent back then.

If you Google it, you'll see the evidence of what a dead-end savage this Harris guy was. He killed two teenage boys for the pure enjoyment of their panic and misery. There's not a whole lot more to it than that.

Posted by: Bill Otis | Apr 27, 2011 1:10:20 PM

Everyone, the only thing that matters is that if SCOTUS is going to revisit Mills and if the PA Supreme Court applied it unreasonably.

Posted by: DaveP | Apr 27, 2011 2:42:41 PM

If on death row, after the facts are solidly established in court, and thoroughly reviewed, write an essay or poetry. All the English Majors will rally to block your execution. The facts go out the window.

Posted by: Supremacy Claus | Apr 27, 2011 3:06:21 PM

DaveP --

Nailed it. As I was saying to federalist, the thing that makes me optimistic in this instance is that the one thing the Supremes will not tolerate is defiance, and they are quite likely to view this as exactly that.

Posted by: Bill Otis | Apr 27, 2011 5:31:42 PM

Dear B.O.

Please note: There are several hack commentators on here who post as "anon." I'm one but not the only one of them.

I can't speak for all of us, but my reason for anonymity is your extreme scariness.

Posted by: 1Anon | Apr 27, 2011 6:09:56 PM

"If I recall correctly, Kent filed a brief in the case...."

I filed a brief in the Ninth Circuit in its regular review of the case, representing several of the states in the Circuit as amici. (We won, BTW, at that stage.) I was not involved in the last-minute action that brought about the Supreme Court's remarkable "no further orders" order. (Amici are not helpful at that stage.) I do not expect to ever see an order like that again, but who knows?

Posted by: Kent Scheidegger | Apr 27, 2011 7:00:38 PM

Kent,
please give us your opinion on what SCOTUS will do with Abu Jamal.
Also, regarding the Robert Harris case way back in the early 90's. I remember that night well. Several judges on the 9th were hell bent on saving Harris that night. It was uncanny. Of course, Harry Pregerson,a Carter appointee was one of the judges who kept issuing stays.
One more thing that nobody has mentioned. Gilbert Merritt of the 6th Circuit actually voted to affirm a Ohio death sentence last week. He even wrote a concurring opinion that seemed to show sympathy for the victim. Unbelievable.

Posted by: DaveP | Apr 27, 2011 7:48:05 PM

Would someone in here who thinks I am all wet about the learned Third Circuit jurists please explain how the Third Circuit could come to the same conclusion as the Pa. Supreme Court (Zettlemoyer, I believe is the case) with respect to Mills, but the Pa. Supreme Court is unreasonable.

Posted by: federalist | Apr 27, 2011 9:08:22 PM

federalist
there is tension there between Zettlemoyer vs. Fulcomer and Abu Jamal. Zettlemoyer was executed in 1995. The 3rd Circuit flatly said Mills didn't apply and the verdict form was not confusing to the jurors.
What a complex case. I am going to have to read Abu Jamal and Zettlemoyer again later. This is a perfect case for SCOTUS to resolve once and for all.
Unfortunately, if Justice White would have voted with Maryland, Mills would have lost 5-4.

Posted by: DaveP | Apr 27, 2011 10:02:26 PM

Everyone read Zettlemoyer v Fulcomer 140-146. Kent please advise us on this tension.

Posted by: DaveP | Apr 27, 2011 10:16:55 PM

1Anon --

"I can't speak for all of us, but my reason for anonymity is your extreme scariness."

The reason for your anonymity is that you are unwilling to stand behind what you say, which is odd since you don't say anything.

Posted by: Bill Otis | Apr 27, 2011 11:07:50 PM

federalist --

"Would someone in here who thinks I am all wet about the learned Third Circuit jurists please explain how the Third Circuit could come to the same conclusion as the Pa. Supreme Court (Zettlemoyer, I believe is the case) with respect to Mills, but the Pa. Supreme Court is unreasonable."

Your error is that you assume abolitionists are interested in analysis.

Posted by: Bill Otis | Apr 27, 2011 11:13:08 PM

Dave, USCA3's previous opinion says,

"The Commonwealth contends the Pennsylvania Supreme Court could not have been unreasonable because we found no Mills violation in Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991). See id. at 307–08 (finding no Mills violation where the instructions had a seventeen word separation between the unanimity clause and the mitigating circumstances clause). But Zettlemoyer is in tension with Frey and we will not engage in a sentence-level parsing of the language employed. Our analysis relies on United States Supreme Court precedent in finding a Mills violation."

A substantial split between circuits is generally sufficient to establish that either side is reasonable for 2254(d) or that neither is dictated by precedent for Teague. Here we have a circuit split with itself.

Such an internal split should be a reason for the court to go en banc, but they chose not to in 2008, so the DA is probably justified in going straight for certiorari this time.

Posted by: Kent Scheidegger | Apr 28, 2011 11:13:52 AM

Kent\
thanks for the clarification. Confusing to the say the least.

Posted by: DaveP | Apr 28, 2011 3:56:04 PM

No DaveP, not confusing at all. Basically just some willful jurists who are twisting the law in favor of a man who murdered a cop.

It is funny how all of those who like to rip on me because I have the temerity to call judges hacks have no answer for the point I have raised.

Posted by: federalist | Apr 28, 2011 9:31:01 PM

federalist
the bottom line here is the 3rd circuit is determined to help Abu-Jamal. It is a confusing and difficult case with tension all around it. I just hope SCOTUS will take it and decide it once and for all. Only they know why they vacated and remanded in light of Spisak. Why would they do this unless they had a reason?

Posted by: DaveP | Apr 28, 2011 10:11:47 PM

DaveP, I think you give the 3d Circuit entirely too much credit, even though the "determined to help Abu Jamal" is a damning thing to say. First of all, the tension around the case is supposed to be irrelevant. Second of all, there is NO excuse whatsoever for this case to be in the federal courts for well over a decade. None. Third of all, I don't really think this case is all that complicated--certainly a lot less complicated than Pinholster. Basically, the Third Circuit is straining hard to find a Mills violation because that's the only claim this guy has that would pass the giggle test and then deeming it unreasonable for the Pa. courts to conclude otherwise. (No matter, of course, that Mills was decided long after Abu Jamal's trial--something that the Pa. courts should be ashamed of, and something which should give the Third Circuit pause--after all habeas still is equitable in nature.)

When you stop and think about it, the Third Circuit judges here labored mightily--for what--to help out a cold-blooded cop-killer. These judges are a disgrace. And Maureen Faulkner has every right to hate them with every fiber of her existence. I feel nothing but contempt for them.

Posted by: federalist | Apr 28, 2011 11:34:22 PM

federalist
yes this case has been in federal court since 2001 and that is ridiculous. It was obvious to me at the recent oral argument that they were going to uphold their prior ruling despite Spisak. The state is going straight to cert and let's hope SCOTUS finds it worthy. It is obvious a case for them to decide to end this.
What is your take on Kent's answer to my question above?

Posted by: DaveP | Apr 29, 2011 6:55:23 AM

I think that it's plain that, at a minimum, Carey v. Musladin engages here, and the Pa. Supreme Court's decision stands. Or that's what should happen.

The federal courts' involvement in this case has been nothing short of disgraceful.

Posted by: federalist | Apr 29, 2011 9:26:19 PM

No manner your ideological views, this case shows why Pa should abandon capital punishment. Mumia committed his crime long before I was born. Many of the Pa death row inmates have been there since the 80's when Ed Rendell was still a prosecutor. This is a waste of money and it vitiates any rationale for capital punishment in the first place. How effective is the death penalty as a deterrent when it is carried out a quarter-century later? More importantly, how is the family of a murder victim to feel vindicated when death row is more properly classified as a state of limbo that may or may not result in an execution? The short of it is that when a Pennsylvania jury renders a guilty verdict for a capital offense, only one thing is certain: the taxpayer loses.

Posted by: Ray Meagher | May 23, 2011 10:33:37 AM

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